Peaks plaintiff: Public will have final say in reclaimed sewage issue

W
hile she's not sure how the federal judges of the 9th Circuit Court of Appeals will rule after hearing arguments in the Arizona Snowbowl case Monday, musician and environmental activist Jeneda Benally said she was encouraged by what was going on outside the courtroom.

A caravan of indigenous youth from Arizona and New Mexico opposed to using reclaimed wastewater to make snow on Dook'o'oosláád was joined by local activists outside the James R. Browning U.S. Courthouse in San Francisco, calling for more investigation into the health effects of close contact with treated sewage.

"Whatever happens in the court, the issue of ingestion of reclaimed sewer water is now on a national front, and the people are curious," Benally said in a telephone interview after returning to Flagstaff, where she lives. "They want to know what's in this water."

A Times reporter tried to leave a message for Snowbowl Manager J. R. Murray Tuesday, but the voice mailbox at the resort was full.

Howard Shanker, attorney for the Save the Peaks Coalition and several individual plaintiffs, argued Monday that the health effects of skiing on snow made from wastewater have not been adequately studied. There is a chance a skier could deliberately or accidentally eat some of the snow, he said.

Attorneys for the U.S. Forest Service, which issued the permit allowing the Snowbowl to use the reclaimed water, said signs could be posted warning people not to eat the snow, and that the Environmental Protection Agency had addressed the health concerns in its environmental impact statement for the project.

Benally said in the Tuesday interview skiers don't always have a choice.

"On a day like today, you can see that the snow on the ski run is melting," she said. "If you imagine that snow is treated wastewater, it would be frightening to imagine anyone falling and face-planting into slushy, contaminated snow."

Benally said the coalition's research indicates Flagstaff's treated wastewater includes chemicals classified as "endocrine disruptors," which can have an affect on a child's development. The chemicals are not covered by federal drinking water standards, the criteria used to treat the effluent.

"All we're saying is there just hasn't been enough analysis," she said. "In the past, our government has told us DDT is safe, asbestos is safe, and we later learned that it wasn't."

But the plaintiff said what disturbed her the most at the hearing were witnesses for the defendants who seemed to contradict earlier testimony about the Snowbowl expansion and snowmaking project.

During the lower court hearing in 2010, the defense had characterized the project as being "almost done," Benally said, casting the protesters as last-minute obstructionists.

"This time, their attorney said they did not even start construction until April, well after our lawsuit was filed in February," she said. "It just shows that they aren't being honest with the people of Arizona and the justice system."

She also decried the Snowbowl's apparent attempt to "moot our case" by lobbying the Navajo Nation Council for an alternate proposal involving groundwater rather than reclaimed water.

"If the Council had gone along with that, we wouldn't have had our day in court and the public wouldn't know what's going on out here," she said. "Whatever happens on the Peaks, at least now people can say, 'What's in this reclaimed wastewater? What are the hazards of using it in different ways? Is it being used in my community?"

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While Benally said she often felt "frustrated" during the hearing, she characterized Monday as "a beautiful day."

"To see the caravan of people coming all the way from Arizona and New Mexico, to see the other tribal communities as well who feel an affinity for the holy San Francisco Peaks, it was wonderful," she said.

It may be up to six months before the judges render a decision, Benally said, but in the meantime, she called the public to action.

"The public needs to have a voice," she said. "Tell ADEQ (the Arizona Department of Environmental Quality) that we don't want our children's health to be adversely affected by their under-studied sewage effluent."

Benally said she wanted to emphasize that, if the judges don't rule in the coalition's favor, it will by no means reflect badly on the plaintiffs' attorney.

"Howard Shanker did this whole case for us for free - pro bono," she said. "He's a fantastic attorney who has done this from his heart, because this is his community and he cares."

The case is an outgrowth of a 2005 lawsuit brought by area tribes and environmentalists who argued that the tribes' religious freedom was being violated by the prospect of spraying treated sewer water on their sacred mountain.

In 2007 a three-judge panel of the 9th Circuit ruled in favor of area tribes. That decision was overturned the following year by the full court, however, and the U.S. Supreme Court refused to hear an appeal.

The courts declined to consider another argument the plaintiffs had brought because it was not part of the original complaint: that the U.S. Forest Service's environmental impact statement failed to consider the health hazards posed to people who eat the manufactured snow.

That argument is the gist of the present appeal. The Navajo tribe and several other original plaintiffs are not part of the present litigation, but some individual tribal members are.

The health concerns suit was heard in federal district court in 2010 and Judge Mary Murguia ruled in favor of the defendants.

A similar lawsuit brought by the Hopi Tribe, in which the tribe argued that the use of reclaimed wastewater for snowmaking violated state water quality regulations, was shot down Dec. 23 by Arizona Superior Court Judge Joseph L. Lodge, who said the issue had already been litigated in the previous Snowbowl case.

Hopi Tribal Chairman Leroy Shingoitewa vowed to appeal.

At least 14 people, including Benally's brother Klee Benally, were arrested over the summer on charges of trespassing and disturbing the peace when they chained themselves to construction equipment or otherwise tried to prevent the project from going forward at the Snowbowl.